Current through all regulations passed and filed through March 18, 2024
(A) Purpose
The purpose of this rule is to describe in detail and provide
the format for the information that must be included in a proxy
statement.
(B) Authority
This rule is promulgated pursuant to the authority vested in
the superintendent under sections
3901.041 and
3901.31 of the Revised
Code.
(C) Revocability of
proxy
State whether or not the person giving the proxy has the power
to revoke it. If the right of revocation before the proxy is exercised is
limited, or is subject to compliance with any formal procedure, briefly
describe such limitation or procedure.
(D) Dissenters' rights of appraisal
Outline briefly any rights of appraisal or similar rights of
dissenters with respect to any matter to be acted upon and indicate any
statutory procedure required to be followed by dissenting security holders in
order to perfect such rights. Where such rights may be exercised only within a
limited time after the date of adoption of a proposal, the filing of a charter
amendment or other similar act, state whether the person solicited will be
notified of such date.
(E)
Persons making the solicitation
(1)
Solicitations not subject to rule
3901-2-12
of the Administrative Code.
(a) If the
solicitation is made by the issuer, so state. Give the name of any director of
the issuer who has informed the issuer in writing that he intends to oppose any
action intended to be taken by the issuer and indicate the action which he
intends to oppose.
(b) If the
solicitation is made otherwise than by the issuer, so state and give the names
of the persons by whom and on whose behalf it is made.
(c) If the solicitation is to be made
otherwise than by the use of the mails, describe the methods to be employed. If
the solicitation is to be made by specially engaged employees or paid
solicitors, state:
(i) The material features
of any contract or agreement for such solicitation and identify the parties;
and
(ii) The cost or anticipated
cost thereof.
(d) State
the names of the persons by whom the cost of solicitation has been or will be
borne, directly or indirectly.
(2) Solicitations subject to rule
3901-2-12
of the Administrative Code.
(a) State by whom
the solicitation is made and describe the methods employed and to be employed
to solicit security holders.
(b) If
regular employees of the issuer or any other participant in a solicitation have
been or are to be employed to solicit security holders, describe the class or
classes of employees to be so employed, and the manner and nature of their
employment for such purpose.
(c) If
specially engaged employees, representatives or other persons have been or are
to be employed to solicit security holders, state:
(i) The material features of any contract or
arrangement for such solicitation and identify the parties;
(ii) The cost or anticipated cost thereof;
and
(iii) The approximate number of
such employees or employees of any other person (naming such other person) who
will solicit security holders.
(d) State the total amount estimated to be
spent and the total expenditures to date for, in furtherance of, or in
connection with, the solicitation of security holders.
(e) State by whom the cost of the
solicitation will be borne. If reimbursement will be sought from the issuer,
state whether the question of such reimbursement will be submitted to a vote of
security holders.
(f) If any such
solicitation is terminated pursuant to a settlement between the issuer and any
other participant in such solicitation, describe the terms of such settlement,
including the cost or anticipated cost thereof to the issuer.
(F) Interest of certain
persons in matters to be acted upon.
(1)
Solicitations not subject to rule
3901-2-12
of the Administrative Code.
Describe briefly any substantial interest, direct or indirect,
of each of the following persons in any matter to be acted upon, other than
elections to office:
(a) If the
solicitation is made on behalf of the issuer, each current director or officer
of the issuer.
(b) If the
solicitation is made otherwise than on behalf of the issuer, any person who
would be a participant in a solicitation (except the issuer, or an officer,
director, or nominee of the issuer).
(c) Each nominee for election as a director
of the issuer.
(d) Each associate
of the foregoing persons.
(2) Solicitations subject to rule
3901-2-12
of the Administrative Code.
Describe briefly any substantial interest, direct or indirect,
of each participant (except the issuer) in any matter to be acted upon at the
meeting, and include with respect to each participant the information or an
adequate summary thereof, required by paragraphs (B)(1), (B)(3), (C), (D)(2),
and (D)(3) of rule
3901-2-14
of the Administrative Code.
(G) Voting securities and principal holders
thereof.
(1) State as to each class of voting
securities of the issuer entitled to be voted at the meeting, the number of
shares outstanding and the number of votes to which each class is
entitled.
(2) Give the date as of
which the record of security holders entitled to vote at the meeting will be
determined. If the right to vote is not limited to security holders of record
on that date, indicate the conditions under which other security holders may be
entitled to vote.
(3) If action is
to be taken with respect to the election of directors and if the persons
solicited have cumulative voting rights:
(a)
Make a statement that they have such rights;
(b) Describe such rights;
(c) State the conditions precedent to the
exercise thereof; and
(d) If
discretionary authority to cumulate votes is solicited, so
indicate.
(4) Furnish
security ownership information as of the most recent practicable date, in
substantially the tabular form set forth in appendix I to this rule, with
respect to:
(a) Any person or group of
persons who is known to be the beneficial owner of more than five per cent of
any class of securities; and
(b)
All directors and nominees, naming them, and directors and officers of the
issuer as a group, without naming them.
(5) If, to the knowledge of the persons on
whose behalf the solicitation is made, a change in control of the issuer has
occurred since the beginning of its last fiscal year, state the name of the
person(s) who acquired control, the amount and the source of the consideration
used by such person or persons, the basis of the control, the date and a
description of the transaction(s) which resulted in the change of control and
the percentage of voting securities of the issuer now beneficially owned
directly or indirectly by the person(s) who acquired control, and the identity
of the person(s) from whom control was assumed. Describe any arrangements which
may at a subsequent date result in a change of control of the
issuer.
(H) Directors and
executive officers.
If action is to be taken with respect to election of directors,
furnish the following information, in tabular form to the extent practicable,
with respect to each person nominated for election as a director and each
person whose term of office will continue after the meeting. However, if the
solicitation is made on behalf of persons other than the issuer, the
information required need be furnished only as to nominees of the persons
making the solicitation.
(1)
Identification of directors and officers. List the names and ages of all
directors and officers of the issuer, and all persons nominated or chosen to
become directors or officers; indicate all positions and offices with the
issuer held by each such person; state his term of office as director and/or
officer and any period(s) during which he has served as such; briefly describe
any arrangement or understanding between him and any other person or persons,
naming such person(s), pursuant to which he was or is to be selected as a
director, officer, or nominee.
(2)
Information furnished in issuer's annual report. The information regarding
officers need not be furnished in proxy or information statements provided that
such information is furnished in a separate item in the issuer's annual report
to stockholders.
(3) Family
relationships. State the nature of any family relationship not more remote than
first cousin between any director, officer, or person nominated or chosen by
the issuer to become a director or officer and also any such family
relationship between any such person and any officer or director of any of the
issuer's parents, subsidiaries or other affiliates.
(4) Business experience. State the principal
occupations and employment during the past five years of each director or
officer and each person nominated or chosen to become a director or officer and
the name and principal business of any corporation or other organization in
which such occupations and employment were carried on.
(5) Directorships. Indicate other
directorships held by each director or person nominated or chosen to become a
director.
(6) Involvement in
certain legal proceedings. Describe any legal proceedings which have occurred
during the past five years or which are pending which are material to an
evaluation of the ability or integrity of any director, or person nominated to
become a director or officer of the issuer.
(7) Describe any of the following
relationships which exist.
(a) If the nominee
or director is, or has within the last two full fiscal years been, an officer,
director or employee of, or owns, or has within the last two fiscal years
owned, directly or indirectly, in excess of a one per cent equity interest in
any firm, corporation or other business or professional entity:
(i) Which has made payments to the issuer or
its subsidiaries during the issuer's last full fiscal year or which proposes to
make payments to the issuer or its subsidiaries during the current fiscal year
in excess of one per cent of the issuer's consolidated gross revenues for its
last full fiscal year;
(ii) To
which the issuer or its subsidiaries were indebted at any time during the
issuer's last fiscal year in an aggregate amount in excess of one per cent of
the issuer's total consolidated assets at the end of such fiscal
year;
(iii) To which the issuer or
its subsidiaries have made payments during such entity's last fiscal year or to
which the issuer or its subsidiaries propose to make payments during such
entity's current fiscal year in excess of one per cent of such entity's
consolidated gross revenues for its last full fiscal year;
(iv) In order to determine whether payments
made or proposed to be made exceed one per cent of the consolidated gross
revenues of any entity other than the issuer for such entity's last full fiscal
year, it is appropriate to rely on information provided by the nominee or
director;
(v) In calculating
payments for property and services the following may be excluded:
(a) Payments where the rates or charges
involved in the transaction are determined by competitive bids, or the
transaction involves the rendering of services as a public utility at rates or
charges fixed in conformity with law or governmental authority;
(b) Payments which arise solely from the
ownership of securities of the issuer and no extra or special benefit not
shared on a pro rata basis by all holders of the class of securities is
received.
(vi) In
calculating indebtedness for purposes of paragraph (H)(7)(a)(ii) of this rule,
debt securities which have been publicly offered, admitted to trading on a
national securities exchange, or quoted in the automated quotation system of a
registered securities association may be excluded.
(b) If the nominee or director is a member or
employee of, or is associated with, a law firm which the issuer has retained in
the last two full fiscal years or proposes to retain in the current fiscal year
where fees paid or anticipated to be paid by the issuer are material to either
the law firm, the issuer, or both.
(c) If the nominee or director is a director,
partner, officer or employee of any investment banking firm which has performed
services for the issuer other than as a participating underwriter in a
syndicate the last two full fiscal years or which the issuer proposes to have
perform services in the current year.
(d) If the nominee or director is a control
person of the issuer (other than solely as a director of the issuer).
(8) Audit:
(a) State whether or not the issuer has
standing audit, nominating, and compensation committees of the board of
directors, or committees performing similar functions. If the issuer has such
committees, however designated, identify each committee member, state the
number of committee meetings held by each such committee during the last fiscal
year and describe briefly the functions performed by such committees.
(b) If the issuer has a nominating or similar
committee, state whether the committee will consider nominees recommended by
shareholders and, if so, describe the procedures to be followed by shareholders
in submitting such recommendations.
(9) State the total number of meetings of the
board of directors (including regularly scheduled and special meetings) which
were held during the last full fiscal year. Name each incumbent director who
during the last full fiscal year attended fewer than seventy-five per cent of
the aggregate of:
(a) The total number of
meetings of the board of directors (held during the period for which he has
been a director); and
(b) The total
number of meetings held by all committees of the board on which he served
(during the periods that he served).
(10) If a director has resigned or declined
to stand for reelection to the board of directors since the date of the last
annual meeting of shareholders because of a disagreement with the issuer on any
matter relating to the issuer's operations, policies or practices, and if the
director has furnished the issuer with a letter describing such disagreement
and requesting that the matter be disclosed, the issuer shall state the date of
resignation or declination to stand for reelection and summarize the director's
description of the disagreement. If the issuer believes that the description
provided by the director is incorrect or incomplete, it may include a brief
statement presenting its views on the disagreement.
(11) With respect to those classes of voting
stock which participated in the election of directors at the most recent
meeting at which directors were elected:
(a)
State the percentage of shares present at the meeting and voting or withholding
authority to vote in the election of directors; and
(b) Disclose in tabular format, the
percentage of total shares cast for and withheld from the vote for or, where
applicable, cast against, each nominee, which, respectively, were voted for and
withheld from the vote for, or voted against, such nominee. When groups of
classes or series of classes vote together in the election of a director or
directors, they shall be treated as a single class for the purpose of the
preceding sentence.
(12)
Instructions:
(a) Calculate the percentage of
shares present at the meeting and voting or withholding authority to vote in
the election of directors, referred to in paragraph (H)(11)(a) of this rule, by
dividing the total shares cast for and withheld from the vote for or, where
applicable, voted against, the director in respect of whom the highest
aggregate number of shares was cast by the total number of shares outstanding
which were eligible to vote as of the record date for the meeting.
(b) No information need be given in response
to paragraph (H)(11) of this rule unless, with respect to any class of voting
stock (or group of classes which voted together), five per cent or more of the
total shares cast for and withheld from the votes for or, where applicable,
cast against any nominee were withheld from the vote for or cast against such
nominee.
(c) If an issuer elects
less than the entire board of directors annually, disclosure is required as to
all directors if five per cent or more of the total shares cast for and
withheld from the votes for, or, where applicable, cast against any incumbent
director were withheld from, or cast against the vote for such director at the
meeting at which he was most recently elected.
(d) No information need be given in response
to paragraph (H)(11) of this rule if the issuer has previously furnished to its
security holders a report of the most recent meeting of security holders at
which directors were elected which includes:
(i) A description of each matter voted upon
at the meeting and a statement of the percentage of the shares voting which
were voted for and against each such matter; and
(ii) The information which would be called
for by paragraph (H)(11) of this rule. If an issuer has previously furnished
such results to its security holders, this fact should be set forth in a letter
accompanying the filing of preliminary proxy materials with the superintendent
of insurance.
(I) Remuneration of directors and officers.
(1) Furnish the following information if
action is to be taken with regard to:
(a) The
election of directors;
(b) Any
bonus, profit sharing or other remuneration plan, contract, or arrangement in
which any director, nominee for election as a director, or officer of the
issuer will participate;
(c) Any
pension or retirement plan in which any such person will participate;
or
(d) The granting or extension to
any such person of any options, warrants or rights to purchase any securities,
other than warrants or rights issued to security holders as such, on a pro rata
basis. If the solicitation is made on behalf of persons other than the issuer,
the information required need be furnished only as to nominees of the person
making the solicitation and associates of such nominees.
(2) Current remuneration. Furnish the
information required below, in substantially the tabular form set forth in
appendix II to this rule, concerning all remuneration of the following persons
and groups for services in all capacities to the issuer and its subsidiaries
during the issuer's last fiscal year, or, in specified instances, certain prior
fiscal years:
(a) Five officers or directors.
Each of the five most highly compensated officers or directors of the issuer as
to whom the total remuneration required to be disclosed in columns C1 and C2 of
the table set forth in appendix II to this rule, would exceed fifty thousand
dollars, naming each such person; and
(b) All officers or directors. All officers
and directors of the issuer as a group, stating the number of persons in the
group without naming them.
(c)
Information to be included. Columns C1, C2, and D of the table set forth in
appendix II to this rule should contain, with respect to each person or group
of persons specified in paragraphs (I)(2)(a) and (I)(2)(b) of this rule, a
dollar amount which reflects the total of all items of remuneration described
in the heading to that column including, but not necessarily limited to, those
items set forth in the subparagraphs of that column.
(i) Column C of the table set forth in
appendix II to this rule shall include all cash and cash equivalent forms of
remuneration received during the fiscal year and all such amounts accrued
during the fiscal year which, with reasonable certainty, will be distributed or
vested in the future.
(ii) Column
C1 of the table set forth in appendix II to this rule shall include salaries,
bonuses, fees and commissions, including:
(a)
All cash remuneration distributed or accrued in the form of salaries,
commissions, bonuses and fees for services rendered.
(b) Compensation earned for services
performed in the latest fiscal year even if it is deferred for future
payment.
(c) Payments received in
the latest fiscal year but earned in prior years which were deferred until the
latest year, if such amounts were not shown in an earlier proxy statement or
annual report to stockholders.
(iii) Column C2 of the table set forth in
appendix II to this rule shall include securities, property, insurance benefits
or reimbursements, personal benefits (perquisites), including:
(a) The spread between the acquisition price,
if any, and fair market price of securities or property acquired under any
contract, plan or arrangement.
(b)
Cost of any life insurance premiums, health insurance premiums and medical
reimbursement plans. Premiums for nondiscriminatory plans generally available
to all salaried employees are excluded.
(c) Personal benefits (perquisites) not
directly related to job performance, excluding benefits provided on a
nondiscriminatory basis, valued on the basis of cost to the issuer of providing
such benefits.
(i) If unreasonable effort or
expense is required to determine the amounts of personal benefits, they may be
omitted if their aggregate value does not exceed ten thousand dollars for each
officer.
(ii) If the amount of
personal benefits exceed ten per cent of the amount of total remuneration, or
twenty-five thousand dollars, whichever is less, the amount and a brief
description of the benefits must be disclosed in a footnote.
(d) Vested company contributions
to thrift, profit sharing, pension, stock purchase and similar plans.
(iv) Column D of the table set
forth in appendix II to this rule shall include all contingent forms of
remuneration, vesting and measurement of which is subject to future events.
Report only amounts relating to the latest fiscal year, not amounts accrued in
previous periods. Column D shall also include:
(a) The amount expensed for financial
reporting purposes representing nonvested contributions, payments or accruals
under any pension or retirement plans, annuities, employment contracts,
deferred compensation plans, including IRS qualified plans, unless the amount
for the individual cannot be separated, in which case a footnote is required
indicating the percentage which contributions to the plan bear to participants'
total remuneration.
(b) The amounts
expensed for financial reporting purposes under any incentive compensation
plans (long-term income plans), such as stock appreciation rights, stock
options, performance share plans, where payout is based on objective standards
or stock values. In subsequent years, if the corporation credits compensation
expense for financial reporting purposes as a result of a decline in the value
of contingent compensation, column D may be reduced by a corresponding amount.
A footnote explaining such action should be included.
(c) The amount expensed for financial
reporting purposes for any nonvested contribution payment or accrual to stock
purchase plans, profit sharing, and thrift plans whether or not they are
qualified under the Internal Revenue Code.
(d) Transactions with third parties.
Paragraph (I)(2) of this rule, among other things, includes transactions
between the issuer and a third party when the primary purpose of the
transaction is to furnish remuneration to the persons specified in paragraph
(I)(2) of this rule. Other transactions between the issuer and third parties in
which persons specified in paragraph (I)(2) of this rule have an interest, or
may realize a benefit, generally are addressed by other disclosure requirements
concerning the interest of management and others in certain transactions.
Paragraph (I)(2) of this rule does not require disclosure of remuneration paid
to a partnership in which any officer or director was a partner; any such
transaction should be disclosed pursuant to these other disclosure
requirements, and not as a note to the remuneration table set forth in appendix
II to this rule presented pursuant to paragraph (I)(2) of this rule.
(e) Other permitted disclosure. The issuer
may provide additional disclosure through a footnote to the table set forth in
appendix II to this rule, through additional columns, or otherwise describing
the components of aggregate renumeration in such greater detail as is
appropriate.
(3) Proposed remuneration:
(a) Briefly describe all remuneration
payments proposed to be made in the future, pursuant to any existing plan or
arrangement to the persons and groups specified in paragraph (I)(2) of this
rule. As to defined benefit or actuarial plans with respect to which amounts
are not included in the table set forth in appendix II to this rule, include a
separate table showing the estimated annual benefits payable upon retirement to
persons in specified remuneration and years-of-service
classification.
(b) Information
need not be furnished with respect to any group life, health, hospitalization,
or medical reimbursement plans which do not discriminate in favor of officers
or directors of the issuer and which are available generally to all salaried
employees.
(4)
Remuneration of directors. Describe any standard or special arrangements,
stating amounts, by which directors of the issuer are compensated for services
as a director.
(5) Options,
warrants, or rights:
(a) Furnish the
information required by the table set forth in appendix III to this rule as to
all options to purchase securities from the issuer or its subsidiaries which
were granted to or exercised by the persons and groups specified in paragraph
(I)(2) of this rule since the beginning of the issuer's last fiscal year, and
as to all options held by such persons as of the latest practicable
date.
(b) The information included
in the table set forth in appendix III to this rule will show as to each
director and officer and as to all directors and officers as a group:
(i) The amount of options granted since the
beginning of the issuer's last full fiscal year;
(ii) The amount of shares acquired since the
date through the exercise of options;
(iii) The amount of shares of the same class
sold during such period; and
(iv)
The amount of shares subject to all unexercised options held as of the most
recent practicable date.
(c) Instructions:
(i) All figures should be adjusted, where
applicable, in accordance with the terms of the options to reflect stock splits
and to give effect to share dividends.
(ii) Other tabular presentations are
acceptable if they include the necessary data. Tabular presentation may not be
needed if only a very few options have been granted.
(iii) Total market value:
(a) Where the total market value on the
granting dates of the securities called for by all options granted during the
period specified does not exceed ten thousand dollars for any officer or
director named in answer to paragraph (I)(2) of this rule, or forty thousand
dollars for all officers and directors as a group, this item need not be
answered with respect to options granted to such person or group.
(b) Where the total market value on the dates
of purchase of all securities purchased through the exercise of options during
the period specified does not exceed ten thousand dollars for any such person
or forty thousand dollars for such group, this item need not be answered with
respect to options exercised by such person or group.
(c) Where the total market value as of the
latest practicable date of the securities called for by all options held at
such time does not exceed ten thousand dollars for any such person or forty
thousand dollars for such group, this item need not be answered with respect to
options held as of the specified date by such person or group.
(d) The term "options" as used in paragraph
(I)(5) of this rule includes all options, warrants or rights, other than those
issued to security holders as such on a pro rata basis. Where the average
option price per share is called for, the weighted average price per share
shall be given.
(e) The extension,
regranting or material amendment of options shall be deemed the granting of
options within the meaning of paragraph (I)(5) of this rule.
(f) If the options relate to more than one
class of securities, the information shall be given separately for each such
class.
(6) Indebtedness of management.
(a) State as to each of the following persons
who was indebted to the issuer or its subsidiaries at any time since the
beginning of the last fiscal year of the issuer:
(i) The largest aggregate amount of
indebtedness outstanding at any time during such period;
(ii) The nature of the indebtedness
outstanding and the transaction in which it was incurred;
(iii) The amount thereof outstanding as of
the latest practicable date; and
(iv) The rate of interest paid or charged
thereon:
(a) Each director or officer of the
issuer;
(b) Each nominee for
election as a director; and
(c)
Each associate of any such director, officer or nominee.
(b) Paragraph (I)(6) of this rule
does not apply to:
(i) Any person whose
aggregate indebtedness did not exceed ten thousand dollars or one per cent of
the issuer's total assets, whichever is less, at any time during the period
specified; or
(ii) Indebtedness
under an insurance policy.
(7) Transactions with management.
(a) Describe briefly any transaction since
the beginning of the issuer's last fiscal year or any presently proposed
transactions, to which the issuer or any of its subsidiaries was or is to be a
party, in which any of the following persons had or is to have a direct or
indirect material interest, naming such person and stating his relationship to
the issuer, the nature of his interest in the transaction and, where
practicable, the amount of such interest:
(i)
Any director or officer of the issuer;
(ii) Any nominee for election as a
director;
(iii) Any security holder
who is known to the issuer to own of record of beneficially more than ten per
cent of any class of the issuer's voting securities; and
(iv) Any relative or spouse of any of the
foregoing persons, or any relative of such spouse, who has the same home as
such person or who is a director or officer of any parent or subsidiary of the
issuer.
(b) Also,
describe briefly any material legal proceedings to which any such person is a
party adverse to the issuer or any of its subsidiaries or has a material
interest adverse to the issuer or any of its subsidiaries.
(c) No information need be given in response
to paragraph (I)(7) of this rule as to any remuneration or other transaction
reported in response to paragraph (I)(2), (I)(3), (I)(4), (I)(5) or (I)(6) of
this rule, or as to any transaction with respect to which information may be
omitted pursuant to these items.
(d) No information need be given in answer to
paragraph (I)(7) of this rule as to any transaction where:
(i) The rates or charges involved in the
transaction are determined by competitive bids, or at rates or charges fixed in
conformity with law or governmental authority;
(ii) The transaction involves services as a
bank depository of funds, transfer agent, registrar, trustee under a trust
indenture, or similar services;
(iii) The amount involved in the transactions
or series of similar transactions, including all periodic installments in the
case of any lease or other agreement providing for periodic payments or
installments, does not exceed forty thousand dollars; or
(iv) The interest of the specified person
arises solely from the ownership of securities of the issuer and the specified
person receives no extra or special benefit not shared on a pro rata basis by
all holders of securities of the class.
(e) This item calls for disclosure of
indirect, as well as direct, material interests in transactions. A person who
has a position or relationship with a firm, corporation, or other entity, which
engages in a transaction with the issuer or its subsidiaries, may have an
indirect interest in such transaction by reason of such position or
relationship. However, a person shall be deemed not to have a material indirect
interest in a transaction within the meaning of paragraph (I)(7) of this rule
where:
(i) The interest arises only:
(a) From such person's position as a director
of another corporation or organization (other than a partnership) which is a
party to the transaction; or
(b)
From the direct or indirect ownership by such person and all other persons
specified in paragraph (I)(7) of this rule of less than a ten per cent equity
interest in another person (other than a partnership) which is a party to the
transaction; or
(c) From both such
position and ownership.
(ii) The interest arises only from such
person's position as a limited partner in a partnership in which he and all
other persons specified in paragraph (I)(7) of this rule had an interest of
less than ten per cent; or
(iii)
The interest of such person arises solely from the holding of an equity
interest (including a limited partnership interest but excluding a general
partnership interest) or a creditor interest in another person which is a party
to the transaction with the issuer or any of its subsidiaries and the
transaction is not material to such other person.
(f) Instructions:
(i) In describing any transactions involving
the purchase or sale of assets by or to the issuer or any of its subsidiaries,
otherwise than in the ordinary course of business, state the cost of the assets
to the purchaser and, if acquired by the seller within two years prior to the
transaction, the cost thereof to the seller. Indicate the principle followed in
determining the issuer's purchase or sale price and the name of the person
making such determination.
(ii)
Information shall be furnished in answer to this item with respect to
transactions not excluded above which involve remuneration from the issuer or
its subsidiaries, directly or indirectly, to any of the specified persons for
services in any capacity unless the interest of such persons arises solely from
the ownership individually and in the aggregate of less than ten per cent of
any class of equity securities of another corporation furnishing the services
to the issuer or its subsidiaries.
(8) Transactions with pension or similar
plans:
(a) Describe briefly any transactions
since the beginning of the issuer's last fiscal year, or any presently proposed
transactions, to which any pension, retirement, savings or similar plan
provided by the issuer, or any of its parents or subsidiaries was or is to be a
party, in which any of the persons specified in paragraph (I)(7) of this rule
or the issuer or any of its subsidiaries had or is to have a direct or indirect
material interest, naming such person and stating his relationship to the
issuer, the nature of his interest in the transaction and, where practicable,
the amount of such interest.
(b) No
information need be given in answer to paragraph (I)(8) of this rule with
respect to:
(i) Payments to the plan, or
payments to beneficiaries, pursuant to the terms of the plan;
(ii) Payment of remuneration for services not
in excess of five per cent of the aggregate remuneration received by the
specified person during the issuer's last fiscal year from the issuer and its
subsidiaries; or
(iii) Any interest
of the issuer or any of its subsidiaries which arises solely from its general
interest in the success of the plan.
(c) Instructions:
(i) Paragraph (I)(7)(c) of this rule shall
apply to paragraph (I)(8) of this rule.
(ii) Without limiting the general meaning of
the term "transaction," there shall be included in answer to this item any
remuneration received or any loans received or outstanding during the period,
or proposed to be received.
(J) Matters related to accounting. If the
solicitation is made on behalf of the issuer and relates to an annual meeting
of security holders at which directors are to be elected, or financial
statements are included, furnish the following information:
(1) If the issuer's financial statements are
not certified by independent public or certified accountants, so
state.
(2) If the board of
directors has no audit or similar committee, so state.
(3) If the issuer's financial statements are
certified by independent public or certified accountants, so state and provide
the following information:
(a) The name of the
principal accountant selected or being recommended to shareholders for
election, approval or ratification for the current year. If no accountant has
been elected or recommended, so state and briefly describe the reason
therefor.
(b) The name of the
principal accountant for the fiscal year most recently completed if different
from the accountant selected or recommended for the current year or if no
accountant has been elected or recommended for the current year.
(c) If a change or changes in accountants
have taken place since the date of the proxy statement for the most recent
annual meeting of shareholders, so state, and if in connection with such
change(s) a material disagreement in connection with financial disclosure
between the accountant and issuer has occurred, the disagreement shall be
described. Prior to filing the preliminary proxy materials with the
superintendent of insurance which contains or amends such description, the
issuer shall furnish the description of the disagreement to any accountant with
whom the disagreement has occurred. If that accountant believes that the
description of the disagreement is incorrect or incomplete, he may include a
brief statement, not to exceed two hundred words, in the proxy statement
presenting his view of the disagreement. This statement shall be submitted to
the issuer within ten business days of the date the accountant receives the
issuer's description.
(d) The proxy
statement shall indicate whether or not representatives of the principal
accountants for the current year and for the most recently completed fiscal
year are expected to be present at the stockholders' meeting with the
opportunity to make a statement if they desire to do so and whether or not such
representatives are expected to be available to respond to appropriate
questions.
(e) If any change in
accountants has taken place since the date of the proxy statement for the most
recent annual meeting of shareholders, state whether such change was
recommended or approved by:
(i) Any audit or
similar committee of the board of directors, if the issuer has such a
committee; or
(ii) The board of
directors, if the issuer has no such committee.
(4) For the fiscal year most recently
completed, describe each professional service provided by the principal
accountant and state the percentage relationship which the aggregate of the
fees for all nonaudit services bear to the audit fees, and, except as provided
below, state the percentage relationship which the fee for each nonaudit
service bears to the audit fees. Indicate whether, before each professional
service provided by the principal accountant was rendered, it was approved by,
and the possible effect on the independence of the accountant was considered
by:
(a) Any audit or similar committee of the
board of directors; and
(b) For any
service not approved by an audit or similar committee, the board of
directors.
(5)
Instructions:
(a) For purposes of paragraph
(J) of this rule, all fees for services provided in connection with the audit
function (e.g., reviews of quarterly reports) may be computed as part of the
audit fees. Indicate which services are reflected in the audit fees
computation.
(b) If the fee for any
nonaudit services is less than three per cent of the audit fees, the percentage
relationship need not be disclosed.
(c) Each service should be specifically
described. Broad general categories such as "tax matters" or "management
advisory services" are not sufficiently specific.
(d) Describe the circumstances and give
details of any services provided by the issuer's independent accountant during
the latest fiscal year that were furnished at rates or terms that were not
customary.
(e) Describe any
existing direct or indirect understanding or agreement that places a limit on
current or future years' audit fees, including fee arrangements that provide
fixed limits on fees that are not subject to reconsideration if unexpected
issues involving accounting or auditing are encountered. Disclosure of fee
estimates is not required.
(K) Bonus, profit sharing and other
remuneration plans; pension and retirement plans.
If action is to be taken with respect to any bonus, profit
sharing or other remuneration plan or any pension or retirement plan, furnish
the following information:
(1)
Describe briefly the material features of the plan, identify each class of
persons who will participate therein, indicate the approximate number of
persons in each such class and state the basis of such participation.
(2) Furnish such information, in addition to
that required by paragraphs (I) and (K) of this rule, as may be necessary to
describe adequately the provisions already made pursuant to all bonus, profit
sharing, pension, retirement, stock option, stock purchase, deferred
compensation, or other remuneration or incentive plans, now in effect or in
effect within the past five years, for:
(a)
Each director or officer named in answer to paragraph (I)(2) of this rule who
may participate in the plan to be acted upon;
(b) All present directors and officers of the
issuer as a group, if any director or officer may participate in the plan;
and
(c) All employees, if employees
may participate in the plan.
(3) If the plan to be acted upon can be
amended otherwise than by a vote of stockholders, to increase the cost thereof
to the issuer or to alter the allocation of the benefits as between the
directors and officers on the one hand and employees on the other, state the
nature of the amendments which can be so made.
(4) With regard to any bonus, profit sharing
or other remuneration plan, on which action is to be taken, furnish the
following information.
(a) State separately
the amounts which would have been distributable under the plan during the last
fiscal year of the issuer:
(i) To directors
and officers; and
(ii) To employees
if the plan had been in effect.
(b) State the name and position with the
issuer of each person specified in paragraph (I)(2) of this rule who will
participate in the plan and the amount which each such person would have
received under the plan for the last fiscal year of the issuer if the plan had
been in effect.
(5) With
regard to any pension or retirement plan on which action is to be taken,
furnish the following information:
(a) The
approximate total amount necessary to fund the plan with respect to past
services, the period over which such amount is to be paid and the estimated
annual payments necessary to pay the total amount over such period;
(b) The estimated annual payments to be made
for the benefit of:
(i) Directors and
officers; and
(ii)
Employees.
(c) The name
and position with the issuer of each person specified in paragraph (I)(2) of
this rule who will be entitled to participate in the plan;
(d) The amount which would have been paid or
set aside by the issuer and its subsidiaries for the benefit of such person for
the last fiscal year of the issuer if the plan had been in effect;
and
(e) The amount of the annual
benefits estimated to be payable to such person in the event of retirement at
normal retirement date.
(6) Instructions:
(a) If action is to be taken with respect to
the amendment or modification of an existing plan, the item shall be answered
with respect to the plan as proposed to be amended or modified and shall
indicate any material differences from the existing plan.
(b) The following instruction shall apply to
paragraph (K)(2) of this rule:
(i) Information
need only be given with respect to benefits received or set aside within the
past five years.
(ii) Information
need not be included as to payments made for, or benefits to be received from,
group life or accident insurance, group hospitalization or similar group
payments or benefits.
(iii) If
action is to be taken with respect to any plan in which directors or officers
may participate, the information called for by paragraph (I)(5) of this rule
shall be furnished for the last five fiscal years of the issuer and any period
subsequent to the end of the latest such fiscal year, in aggregate amounts for
the entire period for such person and group. If any named person, or any other
director or officer, purchased securities through the exercise of options
during such period, state the aggregate amount of securities of that class sold
during the period by such named person and such other directors and officers as
a group. The information called for by these instructions is in lieu of the
information since the beginning of the issuer's last fiscal year called for by
paragraph (I)(5) of this rule. If employees may participate in the plan to be
acted upon, state the aggregate amount of securities called for by all options
granted to employees during the five-year period, and if the options were other
than
"incentive stock options" or options granted pursuant to an "employee stock
purchase plan," as the quoted terms are defined in sections 422 to
423 (2017) and
424 (2018) of the Internal Revenue Code, state that fact and the weighted
average option price per share. The information called for by these
instructions may be furnished in the form of the table set forth in paragraph
(I)(5) of this rule.
(c)
If the plan to be acted upon is set forth in a written document, three copies
thereof shall be filed with the superintendent of insurance at the time
preliminary copies of the proxy statement and form of proxy are
filed.
(d) The information called
for by paragraph (K)(5) of this rule need not be given as to payments made on
an actuarial basis pursuant to any group pension plan which provides for fixed
benefits in the event of retirement at a specified age or after a specified
number of years of service.
(L) Options, warrants, or rights. If action
is to be taken with respect to the granting or extension of any options to
purchase securities of the issuer or any subsidiary, furnish the following
information:
(1) The title and amount of
securities called for or to be called for by such options;
(2) The prices, expiration dates and other
material conditions upon which the options may be exercised;
(3) The consideration received or to be
received by the issuer or subsidiary for the granting or extension of the
options;
(4) The market value of
the securities called for or to be called for by the options as of the latest
practicable date; and
(5) In the
case of options, the federal income tax consequences of the issuance and
exercise of such option to the recipient and to the issuer.
(6) State separately the amount of options
received or to be received by the following persons, naming each such person:
(a) Each director and officer named in answer
to paragraph (I)(2) of this rule;
(b) Each nominee for election as a director
of the issuer;
(c) Each associate
of such directors, officers, or nominees; and
(d) Each other person who received or is to
receive ten per cent or more of such options. State, also, the total amount of
such options received or to be received by all directors and officers of the
issuer as a group, without naming them.
(7) Furnish such information, in addition to
that required by paragraphs (I) and (L) of this rule as may be necessary to
describe adequately the provisions already made pursuant to all bonus, profit
sharing, pension, retirement, stock option, stock purchase, deferred
compensation, or other remuneration or incentive plans, now in effect or in
effect within the past five years, for:
(a)
Each director or officer named in answer to paragraph (I)(2) of this rule who
may participate in the plan to be acted upon;
(b) All present directors and officers for
the issuer as a group, if any director or officer may participate in the plan;
and
(c) All employees, if employees
may participate in the plan.
(8) Instructions:
(a) For the purpose of paragraph (L) of this
rule, the term "option" includes any option, warrant or right.
(b) Paragraphs (L)(2) and (L)(3) of this rule
do not apply to warrants or rights to be issued to security holders as such on
a pro rata basis.
(c) Paragraph
(K)(6)(b) of this rule shall also apply to paragraph (L)(3) of this
rule.
(d) If the options described
in answer to paragraph (K) of this rule are issued pursuant to a plan which is
set forth in a written document, three copies thereof shall be filed with the
superintendent of insurance at the time preliminary copies of the proxy
statement and form of proxy are filed.
(M) Authorization or issuance of securities
otherwise than for exchange.
If action is to be taken with respect to the authorization or
issuance of any securities otherwise than for exchange for outstanding
securities of the issuer, furnish the following information:
(1) State the title and amount of securities
to be authorized or issued.
(2) If
the securities are other than additional shares of common stock of a class
outstanding, furnish a brief summary of the following, if applicable: dividend,
voting, liquidation, preemptive, and conversion rights, redemption and sinking
fund provisions, interest rate and date of maturity.
(3) Describe briefly the transaction in which
the securities are to be issued, including a statement as to:
(a) The nature and approximate amount of
consideration received or to be received by the issuer; and
(b) The approximate amount devoted to each
purpose, as far as is determinable, for which the net proceeds have been or are
to be used. If it is impracticable to describe the transaction in which the
securities are to be issued, state the reason, indicate the purpose of the
authorization of the securities, and state whether further authorization for
the issuance of the securities by a vote of security holders will be solicited
prior to such issuance.
(4) If the securities are to be issued
otherwise than in a general public offering for cash, state the reasons for the
proposed authorization or issuance and the general effect thereof upon the
rights of existing security holders.
(N) Modification or exchange of securities.
If action is to be taken with respect to the modification of
any class of securities of the issuer, or the issuance or authorization for
issuance of securities of the issuer in exchange for outstanding securities of
the issuer, furnish the following information:
(1) If the outstanding securities are to be
modified, state the title and amount thereof. If securities are to be issued in
exchange for outstanding securities, state the title and amount of securities
to be so issued, the title and amount of outstanding securities to be exchanged
therefor and the basis of the exchange.
(2) Describe any material differences between
the outstanding securities and the modified or new securities.
(3) State the reasons for the proposed
modification or exchange and the general effect thereof upon the rights of
existing security holders.
(4)
Furnish a brief statement as to arrears in dividends or as to defaults in
principal or interest with respect to the outstanding securities which are to
be modified or exchanged and such other information as may be appropriate in
the particular case to disclose adequately the nature and effect of the
proposed action.
(5) Outline
briefly any other material features of the proposed modification or exchange.
If the plan of proposed action is set forth in a written document, file copies
thereof with the superintendent of insurance at the time the preliminary proxy
material is filed.
(O)
Mergers, consolidations, acquisitions and similar matters.
(1) Furnish the following information if
action is to be taken with respect to any plan for:
(a) The merger or consolidation of the
issuer;
(b) The acquisition by the
issuer or any of its security holders of securities of another
person;
(c) The acquisition by the
issuer of any other going business or of the assets thereof;
(d) The sale or other transfer of all or any
substantial part of the assets of the issuer; or
(e) The liquidation or dissolution of the
issuer.
(2) Outline
briefly the material features of the plan. State the reasons therefor and the
general effect thereof upon the rights of existing security holders. If the
plan is set forth in a written document, file three copies thereof with the
superintendent of insurance at the time preliminary copies of the proxy
statement and form of proxy are filed.
(3) Furnish the following information as to
the issuer and each person which is to be merged into the issuer or into or
with which the issuer is to be merged or consolidated or the business or assets
of which are to be acquired or which is the issuer of securities to be acquired
by the issuer in exchange for all or a substantial part of its assets or to be
acquired by security holders of the issuer. What is required is information
essential to an investor's appraisal of the action proposed to be taken.
(a) Describe briefly the business of such
person.
(b) State the location and
describe the general character of the plants and other important physical
properties of such person. The description is to be given from an economic and
business standpoint, as distinguished from a legal standpoint. Portfolio or
investment assets of an issuer need not be disclosed.
(c) Furnish a brief statement as to dividends
in arrears or defaults in principal or interest in respect of any securities of
the issuer or of such person, and as to the effect of the plan thereon and such
other information as may be appropriate in the particular case to disclose
adequately the nature and effect of the proposed action.
(d) Furnish a tabulation in columnar form
showing the existing and the pro forma capitalization.
(e) Furnish in columnar form for each of the
last five fiscal years an historical summary of earnings and show per-share
amounts of net earnings, dividends declared for each year and book value per
share at the end of the latest period.
(f) Furnish in columnar form for each of the
last five fiscal years a combined pro forma summary of earnings, as appropriate
in the circumstances, indicating the aggregate and per-share earnings for each
such year and the pro forma book value per share at the end of the latest
period. If the transaction establishes a new basis of accounting for assets of
any of the persons included therein, the pro forma summary of earnings shall be
furnished only for the most recent fiscal year and interim period and shall
reflect appropriate pro forma adjustments resulting from such new basis of
accounting.
(g) To the extent
material for the exercise of prudent judgment in regard to the matter to be
acted upon, furnish the historical and pro forma earnings data specified in
paragraphs (G) and (H) of this rule for interim periods of the current and
prior fiscal years, if available.
(4) Instructions:
Paragraphs (O)(2) and (O)(3) of this rule shall not apply if
the plan described in answer to paragraph (O)(1) of this rule involves only the
issuer and one or more of its totally held subsidiaries. As to each class of
securities of the issuer, or of any person specified in paragraph (O)(2) of
this rule, which is admitted to dealing on a national securities exchange or
with respect to which a market otherwise exists, and which will be materially
affected by the plan, state the high and low sale prices (or, in the absence of
trading in a particular period, the range of the bid and asked prices) for each
quarterly period within two years. This information may be omitted if the plan
involves merely the liquidation or dissolution of the issuer.
(P) Financial statements.
(1) If action is to be taken with respect to
any matter specified in paragraph (M), (N) or (O) of this rule, financial
statements of the issuer and its subsidiaries complying with the requirements
of paragraphs (B)(1), (B)(2), and (B)(3) of rule
3901-2-04
of the Administrative Code shall be furnished, including schedules of
supplementary profit and loss information. Such statements may be omitted with
respect to a plan described in answer to paragraph (O) of this rule if the plan
involves only the issuer and one or more of its totally held
subsidiaries.
(2) If action is to
be taken with respect to any matter specified in paragraph (O) of this rule,
furnish for each person specified therein, other than the issuer, financial
statements complying with the requirements of paragraphs (B)(1), (B)(2), and
(B)(3) of rule
3901-2-04
of the Administrative Code.
(3) The
superintendent of insurance may, upon the request of the issuer, permit the
omission of any of the statements herein required where such statements are not
necessary for the exercise of prudent judgment in regard to any matter to be
acted upon, or may permit the filing in substitution therefor of appropriate
statements of comparable character. The superintendent of insurance may also
require the filing of other statements in addition to, or in substitution for,
the statements herein required in any case where such statements are necessary
or appropriate for an adequate presentation of the financial condition of any
person whose financial statements are required, or whose statements are
otherwise material for the exercise of prudent judgment in regard to any matter
to be acted upon. In the usual case, financial statements are deemed material
to the exercise of prudent judgment where the matter to be acted upon is
authorization or issuance of a material amount of senior securities, but are
not deemed material where the matter to be acted upon is the authorization or
issuance of common stock, otherwise than in an exchange, merger or
consolidation, acquisition or similar transaction.
(4) The proxy statement may incorporate by
reference any financial statements contained in an annual report sent to
security holders with respect to the same meeting as that to which the proxy
statement relates, provided such financial statements substantially meet the
requirements of this item.
(Q) Acquisition or disposition of property.
If action is to be taken with respect to the acquisition or
disposition of any property, furnish the following information:
(1) Describe briefly the general character
and location of the property.
(2)
State the nature and amount of consideration to be paid or received by the
issuer or any subsidiary. To the extent practicable, outline briefly the facts
bearing upon the question of the fairness of the consideration.
(3) State the name and address of the
transferor or transferee as the case may be, and the nature of any material
relationship of such person to the issuer or an affiliate of the
issuer.
(4) Outline briefly any
other material features of the contract or transaction.
(R) Restatement of accounts.
If action is to be taken with respect to the restatement of any
asset, capital, or surplus account of the issuer, furnish the following
information:
(1) State the nature of
the restatement and the date as of which it is to be effective.
(2) Outline briefly the reasons for the
restatement and for the selection of the particular effective date.
(3) State the name and amount of each account
(including any reserve accounts) affected by the restatement and the effect of
the restatement thereon. Tabular presentation of the amounts shall be made when
appropriate, particularly in the case of recapitalization.
(4) To the extent practicable, state whether
and the extent, if any, to which the restatement will, as of the date thereof,
alter the amount available for distribution to the holders of equity
securities.
(S) Action
with respect to reports.
If action is to be taken with respect to any report of the
issuer or of its directors, officers or committees or any minutes of meetings
of its stockholders, furnish the following information:
(1) State whether or not such action is to
constitute approval or disapproval of any of the matters referred to in such
reports or minutes.
(2) Identify
each of such matters which it is intended will be approved or disapproved and
furnish the information required by the appropriate item or items of this
schedule with respect to each such matter.
(T) Matters not required to be submitted.
If action is to be taken with respect to any matter which is
not required to be submitted to a vote of security holders, state the nature of
such matter, the reason for submitting it to a vote of security holders and
what action is intended to be taken by the management in the event of a
negative vote on the matter by the security holders.
(U) Amendment of charter, bylaws or other
documents.
(1) If action is to be taken with
respect to any amendment of the issuer's charter, bylaws or other documents as
to which information is not required by this rule, state briefly the reasons
for and general effect of such amendment.
(2) Instruction. Where the matter to be acted
upon is the classification of directors, state whether vacancies which occur
during the year may be filled by the board of directors to serve only until the
next annual meeting or may be so filled for the remainder of the full
term.
(V) Other proposed
action.
If action is to be taken with respect to any matter not
specifically referred to in this rule, describe briefly the substance of each
such matter in substantially the same degree of detail as is required by
paragraphs (G) to (U) of this rule.
(W) Vote required for approval.
As to each matter which is to be submitted to a vote of
security holders, other than election to office or the selection or approval of
auditors, state the vote required for its approval.
(X) Severability
If any paragraph, term or provision of this rule is adjudged
invalid for any reason, the judgment shall not affect, impair or invalidate any
other paragraph, term or provision of this rule, but the remaining paragraphs,
terms or provisions shall be and continue in full force and effect.
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Appendix
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Appendix
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Appendix